Oct. 24
FLORIDA:
'Florida's system is arbitrary and capricious'
The state of Florida's current capital-punishment system is seriously
flawed and unconstitutional. When I was U.S. attorney, my most difficult
decision was to recommend that my office seek the death penalty.
Fortunately, I had an excellent committee of experienced assistant U.S.
attorneys advising me, and my recommendations were reviewed by another
Department of Justice committee and by the attorney general, who
ultimately decides whether the federal government will seek death.
Nevertheless, my recommendations were very hard because they carried the
awesome realization that the process could lead to someone's execution.
Wisely, the tremendous burden of imposing the death penalty in federal
criminal cases is distributed among a number of participants, providing
crucial protection against the improper imposition of death. The most
important protection is that a jury of 12 members must unanimously decide
the existence of specific aggravating factors that warrant death, and the
jurors also must unanimously recommend a death sentence.
Moreover, each juror must certify that his or her sentencing
recommendation was made without consideration of the race, color,
religious beliefs, national origin or sex of the defendant or any victim.
It's important to note that the term "aggravating circumstances" or
"aggravating factors" is not mere legal jargon; this is the dividing line
between life and death. Aggravating circumstances must be found for death
to be imposed.
Last week, Florida Supreme Court Justice Raoul Cantero of Miami, in
Florida vs. Steele, astutely observed that in state criminal cases, every
state except Florida requires a unanimous jury vote as to either the
existence of aggravating factors or the recommendation of death.
Florida is the only state where a mere majority can find that aggravating
factors exist and a mere majority can recommend death. So the Florida
Supreme Court asked the Legislature to decide whether it "wants Florida to
remain the outlier state."
Florida's system, however, is even worse than Justice Cantero suggested.
Not only does Florida allow death based on a mere majority vote, but also,
unanimity aside, Florida does not even require the majority to be
consistent on any particular aggravating circumstance warranting death.
For example, as the Steele case recognized, death could be imposed if four
of the 12 jurors find one aggravating factor (such as avoiding arrest),
and three others find another factor (such as motive of pecuniary gain)
resulting in a majority "finding" of "one" unspecified aggravating
circumstance -- even though the jury could not muster a majority vote in
favor of any particular factor.
This system is ill-advised, as common sense and fairness dictate that this
is no way to go about imposing the death penalty. More important,
Florida's scheme is unconstitutional. The U.S. Supreme Court under the
Eighth Amendment has struck down death-penalty sentencing schemes that do
not sufficiently minimize the risk of arbitrary and capricious action; and
its cases have clearly demonstrated a trend toward requiring that juries,
not judges, find the facts necessary to impose a particular punishment in
accordance with the Sixth Amendment guarantee of a trial by jury.
Thus, it should come as no surprise that, as Justice Cantero observed, out
of the 38 states that permit the death penalty, 35 require a unanimous
jury finding of aggravating factors and two of the other three (not
Florida, of course) require a unanimous recommendation of death.
Florida's system is arbitrary and capricious, as it allows death based on
a jury's mish-mash combination of minority votes on aggravating factors,
an unreliable system that does not require even a majority finding as to
any particular factor. Aggravating factors are crucial and important
factual determinations that should be clearly rather than obscurely
decided by juries.
Those factual determinations should be unanimous. As common-law scholar
Blackstone expressed in 1769, the "truth of every accusation" against a
defendant "should afterwards be confirmed by the unanimous suffrage of 12
of his equals and neighbors."
The U.S. Supreme Court has consistently adopted and followed this bedrock
principle of common law now enshrined in our Sixth Amendment. Many other
states have recognized that jury unanimity is an important safeguard
against arbitrary and capricious determinations prohibited by the Eighth
Amendment. Florida would be wise to follow those states that, like the
federal system, require unanimous jury determinations and death
recommendations.
(source: Marcos Jimenez was U.S. attorney for the Southern District of
Florida from August 2002 to June 2005; Miami Herald)
CALIFORNIA:
Newark man may face death if convicted----Prosecutor says legal team will
discuss 'appropriate penalty' in cop-slaying case
In Oakland, the Alameda County district attorney will convene with his
staff this week to determine whether to seek the death penalty against a
Newark man in the execution-style slaying of a San Leandro police officer.
On the surface, it would seem to be a simple decision, given the
compelling evidence stacked against Irving Ramirez, a 23-year-old
Salvadorian national who has been charged with gunning down officer Nels
"Dan" Niemi on the night of July 25.
But District Attorney Tom Orloff, who has stepped in to prosecute Ramirez,
said the decision is not an easy one.
While Orloff said he has tried some 25 murder cases during his career,
seeking the death penalty in the liberal Bay Area is a legal challenge
requiring much deliberation.
"Alameda County juries tend to be good juries," Orloff said shortly after
Superior Court Judge Jeffrey Horner bound Ramirez over for trial last
Wednesday. "But they tend to be on the liberal side of the slate."
If so, then the region is reflective of a national sentiment, said Craig
Heney, a professor of psychology at the University of California, Santa
Cruz.
Heney, who authored "Death by Design," which investigates capital
punishment in the United States, said jurors throughout the country are
becoming increasingly reluctant to sentence someone to death, preferring
the sentence of life in prison without parole instead.
"People have now come to understand that the alternative, life in prison
without the possibility of parole, really does mean that," Heney said.
"It's a difficult argument to make when you take the difficult step in
taking a person's life."
Heney said jurors also are better educated and understand that mitigating
factors - such as a person's upbringing, socioeconomic background and
mental history - many times contribute to their crimes.
"It's against that backdrop, even though I think the Bay Area is more
liberal, that jurors are more reflective and skeptical," Heney said.
This is not to say that Alameda County juries outright reject the death
penalty.
In February, jurors sentenced the self-proclaimed "sausage king" Stuart
Alexander to death after he was convicted of murdering three meat
inspectors at his San Leandro plant in June of 2000.
And then there's the Laci Peterson case, in which her husband, Scott, was
sentenced to death in March after being convicted of murdering his
pregnant wife.
Orloff said his legal team will "discuss what we think is the appropriate
penalty" before deciding whether to seek the death penalty against
Ramirez, who is accused of gunning down an unsuspecting Niemi while the
officer was responding to a call on Doolittle Drive in San Leandro on July
25. Witnesses testified that they saw Ramirez shoot Niemi in the back of
head when the officer turned to read several identification cards he had
collected.
Ramirez, witnesses said, then fired 5 more shots into the officer as he
lay on the ground, struggling for his revolver.
Prosecutors alleged that Ramirez shot Niemi because he feared the officer
would arrest him and discover that he was carrying 2 guns and drugs.
Along with the 1st-degree murder charge, Ramirez faces 3 special
circumstance allegations - killing a police officer, killing an officer to
avoid arrest and lying in wait - that could bring the death penalty if he
is convicted.
Ramirez's Oakland-based attorney, Deborah Levy, said she is convinced that
Orloff will seek the death penalty, because her client is accused of
killing a police officer.
"I would bet my house that they're going to go for death on this kid,"
Levy said.
"I just don't see it going any other way. We are in a liberal part of the
Bay Area, but Mr. Ramirez will be facing death."
Asked why she was so certain, Levy said: "It's a pretty cold-blooded
homicide, and it's a police officer. I can read the writing on the wall."
Ramirez is scheduled to return to court on Nov. 2, at which time Orloff
will make public his decision.
Levy said her strategy will change if, in fact, Ramirez faces death.
Ultimately, if Ramirez is convicted, Levy said, she will plead for mercy
from jurors and outline mitigating circumstances that may have contributed
to his actions.
"A death-penalty case is the only time I can really present the entire
life of my client to the jury, talk to when he was born, the fact that he
had injuries as a baby," Levy said. "In other cases, I never can present
my client to the jury."
But, she added, "the risks are much greater."
(source: The Argus)
*********************
Family of murdered Lodi teen waits for justice 25 years later
By all accounts, Terri Lynn Winchell was a girl who enjoyed life. She
sang, she laughed, she liked steak dinners.
So, when the 17-year-old was killed in the most brutal way imaginable, it
left a family and community in shock. Nearly 25 years later, as one of her
killers nears possible execution, Terri's mother can't believe it happened
so long ago.
Barbara Christian talks about her daughter, Terri Winchell, and the murder
that took her from her family in 1981. (Jennifer M.
Howell/News-Sentinel)To this day, she can't listen to "Bridge Over
Troubled Water," or some songs by Barbra Streisand because Terri sang
those sings in her clear, alto voice.
"She could be a beginning grandmother by now," Barbara Christian said of
her daughter, after pausing for a moment to do the math and then realizing
how many years had passed.
But the 5-foot-tall girl with auburn hair that fell in waves past her
shoulders is gone. A gravestone at Cherokee Memorial Park carries her
photo with a naturally perfect smile. The photo was taken for her senior
year at Tokay High School.
"She didn't get to go through my wedding," her childhood friend and
classmate, Deanna Ball, said by telephone. "Even graduation was a big
deal, because we both graduated from Tokay High School - well, she would
have."
Instead of gearing up for their last semester, finals and prom, things
changed for the two close friends who had grown up together. One was found
brutally beaten, raped and stabbed. The other attended her funeral.
Now, a quarter of a century after she was found dead, one of Terri's
convicted killers remains behind bars for life. The other, Michael Angelo
Morales, has been sitting on death row more than 2 decades.
After countless rounds of appeals, the U.S. Supreme Court earlier this
month denied his last appeal, paving the way for a possible February
execution. Terri's family members are waiting to see if he really is
executed. They're not vengeful, but they do want Morales, now 45, to
receive the punishment a jury dealt him in 1983. After all, they say, he
was convicted of brutally taking a life.
Remembering a daughter
Christian spoke of her daughter this week, wearing black clothes with a
cross dangling from a silver chain around her neck. Her pink nail polish
matched her lipstick, and light pink flowered clips held her hair back.
Born April 10, 1963, Terri was Christian's 4th of 5 children. She named
her Terri - a name that was "cute, tomboyish and it kind of fit her," her
mother said.
As a baby, Terri's eyes were blue, but later they turned what her mother
calls a "cinnamon" brown.
By the time she began pulling herself to her feet and clinging to the
couch at 8 months old, it was clear that Terri loved music. When
commercials would come on TV, the tiny girl would bounce to the music,
Christian said, demonstrating with a laugh.
"By the time she was 3 years old, she was singing and picking out tunes on
the piano," her mother said.
She bought Terri a toy piano, and the child took to it instantly. Before
long, she was accompanying herself on a full-size piano.
Terri's parents were divorced, so her father, Mack Winchell, would
sometimes pick up Terri and take her to eat or on a driving trip.
"We'd stop and have our broasted chicken and potatoes in a nice little
spot, by a nice mountain stream," he said by telephone.
Christian went back to work when her daughter was still a toddler, and
that's when Terri met Ball, whose mother baby-sat her. From then on, the
two girls were close friends.
"She was more like a sister," Ball said. "We fought like sisters, we
pulled each other's hair, we played together."
The girls went to elementary school together, but then Terri moved to the
Morada area so they didn't go to the same middle school. In her second
year of high school, Ball transferred to Tokay High, so the two once again
saw each other every day.
One day, Terri was talking to close family friend Tonda Pratt about
various dramas going on between her teenage friends. Pratt advised her to
just stay away, but Terri said she wanted to help sort out the problems.
"Her role and her nature was always so peace-oriented," Pratt said. "She
saw herself as a peacemaker, she always thought she was making things
better."
Jan. 8, 1981
Just days later, on the evening of Jan. 8, 1981, Terri left home in her
small, white car. She was going to get some food, because her mother had
been sick in bed for a week.
What her mother didn't know was that she was also going to meet an
acquaintance named Ricky Ortega, who had called to ask her to meet him at
Weberstown Mall in Stockton to buy a present for Terri's boyfriend. Ortega
told Terri to keep it a secret, which she did except for telling a
girlfriend shortly before leaving the house.
She was wearing a lavender sweater, grape-colored velour pants and a
lavender sheepskin jacket when she left home, Christian recalled.
It was the last time Christian ever saw her daughter.
"By 8 p.m., I started getting frantic and calling around," she recalled.
"By 10, I felt dead inside."
Christian worked as a dispatcher for the Stockton Police Department at the
time and knew she couldn't file a missing person's report for 24 hours - a
practice still in place nationwide due to the high number of runaways.
When Terri still hadn't returned the next day, police got involved.
Stockton Police Sgt. Andy Jackson was in the detective's bureau at the
department when an officer came and told him the case was suspicious.
Jackson retired as a lieutenant in 1996, after more than 30 years as a
police officer. During the nine years he spent in the detective bureau, he
was involved in roughly 200 homicides, and was the lead investigating
officer in about 30 of them.
But he can still vividly recall Terri's disappearance and death.
"It was a case you never forget," he said as he recounted the events from
1981. "I can remember this like it was yesterday."
That Friday night, he and a prosecutor began talking to Ortega. Before
long, Jackson grew frustrated. Things weren't matching up, and when he
called Ortega's mother, she couldn't back her son's story.
Hours later, Ortega began to tell detectives what happened.
Ortega had been sexually involved with Terri's boyfriend so, when Terri
began dating him, Ortega grew jealous. Ortega decided to get his cousin,
Morales, to help get rid of Terri.
Ortega agreed to take detectives to Terri's body.
"We're going about 95 (on Interstate 5), and he says to turn off on
Peltier Road," Jackson said, picturing that trip in the early hours of
Jan. 10, 1981, which took them to a vineyard.
"We kept checking the rows with a spotlight, and then I saw something. ...
It was hideous."
According to Jackson and court testimony cited in appellate rulings,
Morales had sat in the seat behind Terri, then waited until Ortega had
driven out of town. Morales reached from behind and strangled Terri with a
belt as she began screaming.
But then the belt broke, so Morales began beating her with a hammer. After
23 blows to the head, she was still alive. When the men got to the
vineyard, Jackson said, they dragged her from the car by her feet across
the gravel.
A pathologist testified at trial that Terri was still alive when she was
raped, then stabbed in the chest four times.
Jackson had the job of telling Terri's mother that she was dead.
"I can remember walking into that room like it was yesterday," he said. "I
said, 'Barbara, we found Terri and she's deceased.' How else do you say
something like that?"
Lives changed
Christian's life changed drastically. She didn't want to hear the details
about what happened to her daughter, but sometimes it couldn't be avoided.
One day not long after Terri's death, Christian was placing flowers at her
daughter's grave site. A little boy who lived nearby came over and said,
"She is so pretty. My brother kisses her picture. She's the one that had
her head beaten in with a hammer."
Pratt, who was 22 when she waited with the family the night Terri never
came home, saw life differently. She has a daughter the same age Terri was
when she was killed, and she always worries.
"For the rest of your life, you feel a sense of skepticism, you never
quite feel safe," she said. "The greatest betrayal in life is when you're
violated by someone you know."
While Christian kept photos of Terri around the house, Terri's father, who
was living in Tracy at the time, couldn't bear the reminder.
"It took me almost five years. I couldn't even look at her picture after
she was murdered," Winchell said.
Now in his 70s, he can talk about his daughter. Friends call to ask him
about the status of the case, and he continues to wait for an execution
date.
"I'm not the kind of person that has any animosity toward people. It's
just that it's awfully hard to understand how the courts can let people
get away with that for so long," he said. "In the olden days they didn't
have such things as an appeal. If you took a life, you gave a life,
whether by shooting or hanging."
Timeline
April 10, 1963: Terri Lynn Winchell is born.
Jan. 8, 1981: Winchell disappears.
Jan. 9, 1981: Police detain Ricky Ortega and begin questioning him.
Jan. 10, 1981: Ortega leads officers to Winchell's body in a vineyard
north of Lodi. Ortega and Michael Morales are arrested.
Jan. 13, 1981: At least 1,000 people, including most of Tokay High School,
attend Winchell's funeral. The flag at Tokay High hangs at half mast.
April 7, 1983: A Ventura County jury convicts Morales of rape, conspiracy
and murder with special circumstances of torture and lying in wait.
April 25, 1983: The same jury recommends the death penalty.
June 14, 1983: Morales appeals to the California Supreme Court.
Dec. 12, 1983: After a Ventura County jury convicts Rick Ortega of murder,
he is sentenced to life in prison without parole.
May 9, 1986: A state appeals court unanimously upholds Ortega's
conviction. Nov. 27, 1989: After the state Supreme Court affirmed the
conviction, the U.S. Supreme Court declines to take up the case, and the
conviction becomes final.
July 28, 1993: After more appeals to various courts, the state Supreme
Court again denies his petition to reopen the case.
July 28, 2003: The 9th Circuit Court of Appeals upholds the conviction and
strikes down Morales' arguments regarding jury instructions and witnesses.
Oct. 11, 2005: The U.S. Supreme Court denies Morales' appeal, clearing the
way for execution, barring any new legal evidence. Gov. Arnold
Schwarzenegger now has the option of granting clemency to Morales.
Christian feels the same way. She said she has no forgiveness for the men,
but she's also learned not to let negative thoughts consume her.
"I don't have any anger or any vengeance. I just want them to see God,"
she said this week at her home in rural Sacramento County.
Unless Gov. Arnold Schwarzenegger grants Morales clemency or new legal
issues surface, he could be executed in February. The California Attorney
General's Office had been considering a March date, but the tentative date
has been moved up to sometime in February, spokesman Nathan Barankin said
this week.
Terri's parents do not plan to attend the execution. Both said they don't
want the sight of Morales to be the last thing they remember.
Both Pratt and Christian credit their faith in God with giving them
strength, and hope of seeing Terri again.
Like Terri's father, they want to see Morales put to death, though
Christian said lethal injection won't be the same as the pain inflicted on
her daughter.
Now, more than 2 decades after Terri was brutally murdered, her family
members think of her every day. Her mother recalls the funeral, with
Terri's blue casket surrounded by flowers and at least 1,000 people in
attendance. The January sky had been gray and cloudy, but for one moment
at the funeral, the sun broke through.
Terri's older brother, Brad Winchell, made sure to buy the plot beside
Terri's headstone, too. That's where her mother will be buried.
(source: Lodi News-Sentinel)
*****************************
S.F. Mother's Sanity Likely to Be Issue
Lashuan Harris had been hospitalized and prescribed drugs to quiet the
voices inside her head. Still, legal and mental health experts say it will
be difficult to prove the 23-year-old mother was legally insane when she
dropped her three young sons to their deaths in San Francisco Bay.
California is one of about 20 states that uses the strictest legal
standard for assessing a plea of not guilty by reason of insanity. Under
the rule, criminal defendants must show not only evidence of mental
illness, but that they were incapable of determining right from wrong.
"Somebody may be very clearly psychotic and have a history of behaviors
that establish the person was ... delusional, but that doesn't get you to
insanity the way the law looks at it," said Ron Honberg, legal director
for the National Alliance for the Mentally Ill.
Harris, scheduled to return to court Friday, will most likely face a
hearing to determine if she is mentally competent to stand trial, and
psychiatrists eventually will attempt to determine whether she was insane
at the time.
Harris' lawyer, Teresa Caffese, refused comment last week on whether her
client would claim insanity. Harris has pleaded not guilty to three counts
of capital murder.
On Wednesday evening, authorities said Harris lifted the boys over the
railing of a downtown pier, dropping them one by one into the chilly
53-degree water 10 feet below. Authorities said she told investigators
that voices instructed her to do so.
The body of Taronta Greeley, 2, was recovered late Wednesday night about
two miles from Pier 7. The other 2 boys-- Treyshun Harris, 6 and Joshoa
Greeley, 16 months -- remained missing Sunday and were presumed dead.
Relatives say the former nurse's assistant, who gave birth to her 1st
child at age 16, suffers from schizophrenia that surfaced within the last
two years and recently worsened when she stopped taking her medication.
Harris' history as a struggling young, single mother may have exacerbated
her condition, said Shari Lusskin, director of reproductive psychiatry at
New York University Medical Center.
"She is a walking risk factor," Lusskin said.
Legal experts say insanity defenses are used only in about 2 % of all
felony cases, and acquittals remain relatively uncommon. Mothers have had
mixed success arguing they were not responsible for their actions because
of mental illness.
Christina Riggs, a nurse who injected her 2 sons with potassium chloride,
the chemical used in executions, was put to death in Arkansas 5 years ago
after an unsuccessful insanity defense.
Prosecutors sought the death penalty for Andrea Yates, the Texas mother
who in 2001 methodically drowned her five children in a bathtub. Despite
an insanity plea based on postpartum psychosis, she was sentenced to life
in prison.
In contrast, Deanna Laney, a Texas woman who beat her two young sons to
death with rocks, was acquitted by reason of insanity earlier this year.
Prosecutors have not yet decided whether to seek the death penalty for
Harris.
Experts say the frequency of such cases points to the need for more
aggressive monitoring of mentally ill mothers. In New York, for example,
mothers can be ordered by a court to undergo treatment or take drugs to
control their illness.
Even making it socially acceptable for mothers to talk about the
difficulties of parenting could help prevent such tragic outcomes, said
Santa Clara University law professor Michelle Oberman.
"Imagine the life of a 23-year-old with three children under the age of 7,
something that by definition includes a lot of struggle even if you are
mentally healthy, even if you finished school, even if you are employed,"
said Oberman, co-author of "Mothers Who Kill Their Children: Understanding
the Acts of Moms From Susan Smith to the Prom Mom."
"It's ludicrous to think that a mother who is schizophrenic can parent a
child, let alone 3 children on her own. It's a recipe for disaster,"
Oberman said.
(source: Associated Press)
